Mark A Berman

January 05, 2010 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, discusses recent decisions that address the need to properly preserve and implement a "litigation hold" of e-mails; demonstrate that one still needs to sufficiently justify a request for e-discovery and that overbroad demands will not be countenanced; and show the increasing use of non-party records that would indicate whether on a certain relevant date and time a person was accessing the Internet or using a BlackBerry and cellphone device in car accident cases.

By Mark A. Berman

13 minute read

October 10, 2005 | Legaltech News

When you send e-mail, you probably think it's private. But if you're sending it from work -- using the company's time and equipment -- it might not be. Is it legal for an employee to password-protect documents and files at work? What if the files are personal? Does the employer have the right to access protected files if they're personal? What constitutes a reasonable expectation of privacy? How safe is e-mail, really? A number of cases have covered these issues.

By Mark A. Berman and Aaron Zerykier

10 minute read

March 20, 2007 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, writes that counsel and parties need to ensure that electronically stored information is properly preserved. A demonstration of willful spoliation will no doubt result in severe sanctions. But, what will inevitably become increasingly common are applications predicated upon negligent spoliation resulting from inadvertent destruction or loss or from routine document retention policies.

By Mark A. Berman

15 minute read

July 30, 2009 | Legaltech News

The CFAA remains a powerful tool that provides for injunctive and equitable relief that may be useful when a business is threatened by loss of critical data and information. However, warns Ganfer & Shore partner Mark Berman, the statute is exacting and state courts narrowly construe it.

By Mark A. Berman

9 minute read

January 04, 2011 | New York Law Journal

In his State E-Discovery column, Mark A. Berman, a partner at Ganfer & Shore, reviews decisions from the First Department and the Commercial Division that highlight the need for clearer guidance on which party is responsible for the costs of e-discovery.

By Mark A. Berman

13 minute read

October 28, 2008 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, reviews recent decisions regarding the "cloning" of computer hard drives and what electronic information of a party or non-party is discoverable, the propriety of sealing court documents where it was found that the movant had no expectation of privacy over the allegedly scandalous electronic communications, and supposed defamatory comments on an "innocent" Web site.

By Mark A. Berman

11 minute read

August 31, 2007 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, and Hal N. Beerman, and associate at the firm, write that as communications over the Internet expand, the types of electronically stored information that can be obtained in discovery is concomitantly increasing, including metadata, instant messages, and chat room conversations. The first issue, of course, is to determine whether such electronic information has been maintained and if it can be produced in any usable form . . .

By Mark A. Berman and Hal N. Beerman

15 minute read

September 07, 2010 | New York Law Journal

Mark A. Berman of Ganfer & Shore writes that in deciding motions seeking to clone opposing parties' hard drives, courts want more than speculation that the requested ESI would ordinarily have been stored on the hard drive, and may require a substantiated proffer that the failure to voluntarily produce such ESI is due to its unintentional retention or deletion or a more sinister motive.

By Mark A. Berman

11 minute read

July 06, 2010 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, writes: People continue to rely on their belief that the contents of e-mails are sacrosanct and what is written remains confidential to everyone other than the parties to them. However, that expectation of privacy is breaking down by the day. E-mails should more properly be viewed as a postcard, available to a passerby to read, than like a sealed letter.

By Mark A. Berman

12 minute read

January 27, 2009 | New York Law Journal

Mark A. Berman, a partner at Ganfer & Shore, reviews recent cases involving jurisdiction in New York over out-of-state defendants based on communications with a Web site. Current precedent requires that a Web site must have some degree of interactive capacity for a court to be able to find jurisdiction on the basis of electronic communications with it, but mere interactive ability may not be enough for jurisdiction to lie. Courts will also analyze whether there is substantial solicitation, advertising directed to New York, systematic and continuous servicing of New York customers, and revenue derived therefrom.

By Mark A. Berman

12 minute read